This LightStep Terms of Service (“Agreement”) is entered into between LightStep, Inc. (“LightStep”) and you, the customer listed on the Order Page (“Customer”). This Agreement includes and incorporates the Order Page and LightStep’s standard Terms of Service below and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. To use LightStep’s products, software, services and web sites (referred to collectively as the “Services”), you must first agree to the Terms. YOU AGREE TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS BY CLICKING OR TAPPING ON A BUTTON INDICATING YOUR ACCEPTING, BY EXECUTING A DOCUMENT THAT REFERENCES THEM, OR BY USING THE SERVICES. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Access to the Service and Software License; Subscription; Usage Limits
Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the any applicable Order Form) LightStep grants Customer a nonsublicensable, nonexclusive right and license to (i) access and use the services specified in each Order Form for the duration specified in the Order Page for the internal business purposes of Customer, only as provided herein and only in accordance with LightStep’s applicable published user documentation, and (ii) use the software specified in the Order Page (“Software”) in object code form only (unless otherwise specified in writing by LightStep), and only in accordance with LightStep’s applicable published user documentation. Some of the software required by or included in LightStep may be offered under an open source license. Open source software licenses constitute separate written agreements. Use of open source software is listed in the documentation. Customer acknowledges that the Services are purchased as subscriptions as stated in the Order Page. Services are subject to the usage and time limits specified in the Order Page or applicable Documentation.
2. Service and Software Updates
From time to time, LightStep may provide upgrades, patches, enhancements, or fixes for the Services or Software to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services or Software and subject to this Agreement; provided that LightStep shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that LightStep may cease supporting old versions or releases of the Services or Software at any time in its sole discretion. If requested by LightStep, Customer shall, within five (5) days of an Update to the Software becoming generally available, implement such Update and cease using the prior version or release of the Software.
3. Ownership; Feedback
As between the parties, LightStep retains all right, title, and interest in and to the Services and Software, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by LightStep for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any Software which is distributed or otherwise provided to Customer hereunder (including, without limitation, any software identified on an Order Page) is licensed under the applicable Open Source License and not sold, and shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to LightStep with respect to the Service or Software (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for LightStep notwithstanding anything else. Customer shall, and hereby does, grant to LightStep a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair LightStep’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
4. Fees; Payment
Customer shall pay LightStep fees for the Service and Software as set forth in the Order Page (“Fees”). Unless otherwise specified in an Order Page, (i) all Fees are based on the Services subscription services purchased on the Order Page, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) usage limitations on the Order Page cannot be lowered during the relevant Term.
Customer will provide LightStep with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to LightStep. If Customer providers credit card information to LightStep, Customer authorizes LightStep to charge such credit card for all Services listed in the Order Page for the Initial Term and any Renewal Term as set for in below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Page. If the Order Page specifies that payment will be by a method other than a credit card, LightStep will invoice all Fees shall be in advance or otherwise in accordance with the relevant Order Page, with invoiced fees due net 10 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information and notifying LightStep of any changes to such information. All Fees and any other amounts payable hereunder are payable in U.S. dollars. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on LightStep’s net income). All Fees paid are non-refundable and are not subject to set-off.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service or Software for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or Software or any portion thereof; (vi) use the Service or Software to build an application or product that is competitive with any LightStep product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures LightStep may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service and Software, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service and Software in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service and Software (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service or Software in a manner that violates any third party intellectual property, contractual or other proprietary rights. Customer’s use of the Software is additionally subject to the applicable Open Source License.
6. Confidentiality; Customer Data; Publicity
Customer (the “Receiving Party”) understands that LightStep (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service, including without limitation by means of the Software. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not LightStep, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. The parties acknowledge and agree that the Service does not require use of or access to any personally identifiable information by LightStep, and Customer shall not provide LightStep with any personally identifiable information. LightStep shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. LightStep is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is forty-five (45) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that LightStep may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) use Aggregated Anonymous Data for purposes of providing, improving, testing, and marketing LightStep’s products and services. “Aggregated Anonymous Data” means data submitted to, collected by, or generated by LightStep in connection with Customer’s use of the Service, but only in aggregate, de-identified form which can in no way be linked specifically to Customer or any individual. Notwithstanding anything else, LightStep is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials). In addition, Customer shall participate in a case study at LightStep’s reasonable request to document impact and/or return on investment of the Services.
7. Term; Termination
If the Customer selected a free trial basis of LightStep’s Services on the Order Page (“Free Trial”), LightStep will make the Service available on a trial basis free of charge until the earlier of (a) the end of the free trial period or applicable free trial usage limitations for which the Customer registered to use the Services, or (b) the start date of any purchased Services ordered by the Customer (“Free Trial Term”). This Agreement shall commence upon the effective date set forth in the first Order Page, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Page Terms. For each Order Page, the “Order Page Term” shall begin as of the effective date set forth on such Order Page, and unless earlier terminated as set forth herein, (x) for a Free Trials continue for the Free Trial Term, (y) if a Free Trial was not selected by the Customer, (A) the initial term specified on the Order Page (the “Initial Term”), and (B) following the Initial Term, shall automatically renew for additional successive periods specified on the applicable Order Page and if not specified, monthly, (each, a “Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than 1 day prior to the expiration of the Initial Term or then-current Renewal Term, as applicable.
Customer acknowledges and agrees that all Fees paid to LightStep are nonrefundable, and Customers may cancel the Services at any time by contacting customer support at any time, in which case, LightStep ceases to provide the Services at the end of the then-current Initial Term or Renewal Term (as applicable).
In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, LightStep may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with LightStep’s ability to provide access to the Service to other customers; provided that prior to any such suspension or limitation, LightStep shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) LightStep shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Customer shall defend, indemnify, and hold harmless LightStep, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers, agents and representatives (collectively, the “Indemnitee”) from and against all liabilities, claims, and expenses paid or payable (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim concerning (i) Customer’s use of the Services, (ii) Customer Data, (iii) breach of this Agreement or violation of applicable law by Customer or any Customer Data, (iv) a dispute between Customer and a third party.
LightStep will defend Customer and its employees, officers, and directors and will pay the amount of any adverse final judgment or settlement to a third party due to a third-party claim alleging the software underlying the Service, infringes, violates, or misappropriates any third party intellectual property right, provided Customer provides LightStep with: (i) prompt written notice of any claim; (ii) the option to assume sole control over the defense and settlement of any claim; and (iii) reasonable information and assistance in connection with such defense and settlement. The foregoing obligations of LightStep do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by LightStep (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by LightStep, (iv) combined with other products, processes or materials not provided by LightStep (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service and Software is not strictly in accordance herewith.
9. Implementation; Support
Customer is responsible for the implementation of the Software and Service and acknowledges that LightStep LightStep’s support obligations are (i) if selected by the Customer, the support package on the Order Page, or (ii) if no support selection made by the Customer, the support available via LightStep’s publicly available documentation and in-product support mechanisms.
SERVICE AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
11. Limitation of Liability
EXCEPT FOR THE LIGHTSTEP’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, IN NO EVENT SHALL LIGHTSTEP, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO LIGHTSTEP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and LightStep with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and LightStep with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Page. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s assets or business relating to this Agreement, and (ii) LightStep may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.